|
[CONSIDERANDOS]
Final Conclusions and Award
CHAPTER I.
The Court bears in mind, as regards the plea of inadmissibility of the
complaint as entered by the representative of the Guatemalan government
under the allegation that article I of the convention creating this court
was violated:
1. That the theory on which said party wishes to base its plea would lead to
the rejection, on the grounds of illegality, of any complaint not
accompanied by proof that negotiations looking to a settlement between the
respective foreign offices had been begun and concluded without success; we
say begun and concluded, because if the requirement were confined to the
mere beginning of conciliatory efforts, pending which a complaint were
admissible, the objection would lose all its force.
2. That such a view of the matter finds no foundation either in the wording
of the law, or much less in a correct interpretation of its spirit, which,
in accordance with the principles governing the interpretation of
international compacts, should be investigated with a view to deducing from
its purport the consequence most in conformity with the order of ideas and
interests to which it corresponds and most in conformity with the purpose of
maintaining the full efficacy of the provision itself and as related to the
remaining articles of the treaty. [p730]
3. That the phrase “in case the respective foreign offices should have been
unable to reach an agreement,” is far from entailing as a corollary the
imperative precept that efforts in this direction must be begun and
concluded in every case; for apart from the fact that there would thus be
excluded, to the detriment of Central American peace, those claims in which
this condition was impossible of fulfillment, we must observe that the
certainty of not being able, that is, of the real or moral impossibility of
reaching an amicable agreement, does not always and solely exist as the
result of unsuccessful endeavors, but is usually the result of circumstances
which render it necessary at once to characterize such steps as useless,
inadmissible, or perhaps dangerous, and therefore to desist there-from; for
instance, if the honor of a nation were involved or a rupture of hostilities
should occur by reason of a cessation of relations. And we must suppose that
the high parties signing the convention thought thus, for the reason that
they did not use the formula “in case the respective foreign offices should
have begun and concluded negotiations for the purpose of reaching an
agreement,” or some other explicit mode of expression, instead of the one
adopted.
4. That the function assigned to this court by article XVIII ibid., of
arresting the course of an armed conflict by determining, from the very
moment a claim is filed, the situation in which the contending governments
are to remain pending the rendition of an award, presupposes the right to
have recourse to the court without delay in matters of urgency, as occurred
in the case under consideration, and if we accepted the above mentioned view
of the matter the humanitarian and unquestionably utilitarian purpose for
which this important article was inserted would be essentially frustrated,
the article being reserved perhaps for emergencies of minor risk and
significance or converted perhaps into a simple expression of wish.
5. That this error becomes obvious, moreover, if we observe that it would
often shut off the nations from the path of judicial controversy, compelling
them to accept war or humiliation as the only alternatives.
6. That the object of the reservation contained in the article under
discussion is to hold intact the right of the nations to settle their
controversies by amicable agreement notwithstanding their pledge to submit
them to the court, but its purpose is not to lay down an inviolable rule
that negotiations to this end must be made and exhausted, and if we construe
its text in this manner there are no grounds upon which the plea in question
can be sustained. [p731]
7. That the construction placed upon the aforesaid reservation in the
preceding paragraph is further supported by the text of article I of the
General Treaty of Peace and Amity signed at the same time as the convention
cited, in which article is also embodied the agreement of the signatory
republics to submit to this court all their differences of whatsoever
nature, and nevertheless the necessity or expediency of first endeavoring to
procure an agreement between the respective foreign offices is not even
hinted at.
CHAPTER II.
With regard to the plea of insufficiency of the complaint, entered by the
same party in the belief that article XIV ibid, was violated because the
plaintiff failed to accompany his complaint with the proofs of his charges,
we take into account:
1. That, as stated in chapter V of the first part of this award, after the
complaint was communicated to the high defendants the said proofs were
transmitted to them separately as soon as the period within which they were
to answer had begun, and as a matter of fact these proofs formed the subject
of an extensive and particular discussion on the part of the representative
of the Guatemalan government in his written reply and defense.
2. That this second plea can also not be admitted for the reason that, since
the ends of justice sought to be satisfied by the said article are
accomplished, the plea under discussion is without foundation, and because
the party making the objection accepted the suit in this form and answered
the charge, referring to all its points and the proof supporting it.
CHAPTER III.
In the complaint both the charges on which the suit is based are directed
against the governments of El Salvador and Guatemala without making any
distinction between the two high contracting parties regarding the ultimate
purpose of the suit, although a distinction is made with regard to facts
which are distinguished and separated in the recital; and in order to lay
down the premises of the award, the court, *** reaches the following
conclusions:
1. That the records of the case do not show, even in the doubtful form of
circumstantial evidence, a single act of support or aid lent to the
conspirators by the said governments or by private parties with their [p732]
authorization or tolerance, by virtue of which they would incur direct or
indirect liability for violation of their neutrality, in the incident which
gave rise to this suit; and it must be noted that the only fact that could
be cited in this connection against the Salvadorean government (the aid
afforded the faction, by means of their personal cooperation, by Lee Roy
Cannon and the emigrants Augusto C. Coello and associates, who departed from
its territory), could not be charged against it for the aforementioned
purpose either in accordance with the general principles of international
law *** or according to the provisions of the General Treaty of Peace and
Amity concluded at Washington, or much less in conformity with the
declaration embodied in the protocol of the San José Conference, referred to
above.
2. That moreover the evidence in the case does not warrant the assertion
that such liability arose from a lack of due diligence on the part of the
defendant governments in adopting and enforcing the necessary measures to
prevent the crime, for the contrary is gathered from all the evidence
adduced in the suit. From this standpoint the very recital of the plaintiff
excludes the Guatemalan government from such liability by not charging it
with any specific act, positive or negative, which would place it under this
head of the indictment; and as far as the other high defendant is concerned,
only two facts are worthy of discussion, namely, the failure of the
prosecution of the aforementioned emigrants and the flight of Lee Roy Cannon
from San Miguel where he held the office of Chief of Police, for the purpose
of joining the insurrectionist party; but the documents in the case lead to
the conviction that the chief executive of the republic of El Salvador,
personally and through the authorities under him, exercised, both before and
after July 5, all the vigilance that could reasonably be expected from the
administrative authorities of the country, in order to prevent the departure
of persons who, owing to their political affiliations in Honduras, might be
attracted by the scheme of the conspirators, whereas the action taken by the
Honduran officials was deficient in this regard; the documents also show
convincingly that the flight of Cannon from El Salvador, where he had
committed embezzlement and was implicated in the faction, without either the
consent or tolerance of the government, can in no wise involve the
responsibility of the latter. In this manner there arises in its favor a
presumption of honesty and good faith sufficient alone to shield it, if the
charge were not further effectively counteracted by the [p733] circumstance
that the Honduran government contributed toward its own injury by a lack of
precautionary effort. ***
3. That it can also not be asserted that there was a culpable lack of
diligence on the part of the said government because the aforementioned
Hondurans had not been arrested and prosecuted at the date of the complaint
and escaped from the measures of " concentration " although their
seditionary purposes were already known, which question is at once referred
to article XVII of the treaty, which is cited by the author as the basis for
this chapter of his complaint. The second point has already been treated in
the preceding paragraph; with regard to the first point it must be remarked
that the obligation assumed by the signatory governments by virtue of the
stipulation contained in this article, which is nothing else than a
confirmation of a universally recognized international duty, makes it
incumbent upon them subject to trial in accordance with their positive law,
that is, according to their penal laws and code of procedure any person who
begins or foments revolutionary activity against either of them; that the
penal code of the republic of El Salvador punishes the consummated crime,
the frustrated crime, and the attempt, but not the mere preparation of an
unlawful act, and, restricting the repressive power of the law with regard
to the last-named imperfect form of the offense, it declares that the
proposition and conspiracy are only punishable in the cases expressly
indicated by the law, among which are not included violations of neutrality,
this being the stand taken on the subject by the penal code of Honduras
also; that consequently, even supposing it to be proven that the
revolutionary plot had assumed the legal character of a conspiracy, the
Honduran officials, owing to a lack of authority, were not under obligation
to commence action against the aforementioned persons or to order their
formal imprisonment, for which very reason they were obliged to confine
themselves, in carrying out the Treaty, to " concentrating" and keeping
watch of the suspects through the police authorities to the extent permitted
by the laws; that in accordance with the foregoing, the presumption of good
faith in favor of the government of El Salvador is not affected in this
instance, since it is certain that such presumption is not destroyed by the
fact that there were not exercised, for the sake of fulfilling the duties of
neutrality, repressive or restrictive measures against individual liberty
incompatible with the rules of Salvadorean public law. *** [p734]
4. That it would not be admissible in the present controversy to invoke the
obligation incumbent upon every nation to provide laws and institutions for
its internal administration which shall render it practically capable of
repressing within its territory acts which are injurious to the other
members of the international commonwealth, and to be responsible, therefore,
for every defect arising from deficiency in the laws, for the penal code and
the code of preliminary criminal procedure of the republic of El Salvador,
in this part as well as in the remainder of its text, are based on the same
principles which govern liability to punishment in the nations in and
outside of Central America, and answer the requirements of a civilized
people. ***
5. That the negative conclusion resulting from the considerations above set
forth with regard to the assertion of a culpable lack of diligence must be
applied to the same charge as made against the government of Guatemala, for
all the more reason since neither the complaint nor the evidence presented
relate any circumstance which merits the special study and examination of
the court.
6. That on account of what has been said it is just to declare also that no
grounds are found among the records of the case for admitting that in this
form the high defendants incurred, with respect to the revolutionary
movement which occurred in Honduras, the responsibility with which they have
been charged by the high plaintiff.
Whereas:
The proceedings in the present suit having been considered to be terminated
and the deliberations of the court on the various points to be sufficient,
the presiding judge proposed the following set of questions to be voted upon
in rendering the award which is to decide the controversy:
First: Should we admit the plea of inadmissibility of the complaint as
entered by the representative of the Guatemalan Government, under the
allegation that the complaint was filed without exhausting the negotiations
for an agreement between the respective Foreign Offices?
Second: Shall we admit the plea, entered by the same party, of insufficiency
of the complaint to institute the suit owing to the circumstance that it was
not accompanied by the evidence when the charge was originally notified to
the opposite party?
Third: Is it demonstrated and should it be so declared, that the government
of El Salvador violated article XVII of the General Treaty of Peace and
Amity concluded at [p735] Washington on December 20, 1907, by not "
concentrating " and subjecting to trial the Honduran emigrants who
threatened the peace of their country ?
Fourth: Is it demonstrated and should it be so declared, that the government
of El Salvador violated article II of the Additional Convention to the said
treaty, by protecting or fomenting the aforesaid insurrectionary movement?
Fifth: Is it demonstrated and should it be so declared, that the government
of El Salvador contributed towards the accomplishment of said political
crime through a culpable lack of diligence?
Sixth: Should the action begun against the government of El Salvador be
consequently declared lawful and the latter therefore sentenced to pay the
damages asked?
Seventh: Is it demonstrated and should it be so declared, that the
government of Guatemala violated article XVII of the General Treaty of Peace
and Amity concluded at Washington on December 20, 1907, by not "
concentrating" and subjecting to trial the Honduran emigrants who threatened
the peace of their country ?
Eighth: Is it demonstrated and should it be so declared; that the government
of Guatemala violated article II of the Additional Convention to said treaty
by protecting or fomenting the aforesaid insurrectionary movement?
Ninth: Is it demonstrated and should it be so declared, that the government
of Guatemala contributed towards the accomplishment of said political crime
through a culpable lack of diligence?
Tenth: Should the action begun against the government of Guatemala
consequently be declared lawful and the latter therefore sentenced to pay
the damages asked?
Eleventh: Should the losing party or parties be sentenced to pay the costs
of trial?
Whereas:
Having weighed the evidence adduced by the high litigating parties with the
freedom of judgment enjoined by article XXI of the aforementioned
convention, the judges composing this court voted as follows on the eleven
propositions contained in the foregoing paragraph:
The first was answered negatively by the five judges.
The second was answered negatively by the five judges.
The third was answered negatively by Judges Gallegos, Bocanegra and Astua,
and affirmatively by Judges Ucles and Madriz.
The fourth was answered negatively by Judges Gallegos, Bocanegra, Madriz and
Astua, and affirmatively by Judge Ucles.
The fifth was answered negatively by Judges Gallegos, Bocanegra and Astua,
and affirmatively by Judges Ucles and Madriz.
The sixth was answered negatively by Judges Gallegos, Bocanegra and Astua
and affirmatively by Judges Ucles and Madriz.
The seventh [p736] was answered negatively by Judges Gallegos, Bocanegra,
Madriz, and Astua, and affirmatively by Judge Ucles.
The eighth was answered negatively by Judges Gallegos, Bocanegra, Madriz and
Astua, and affirmatively by Judge Ucles.
The ninth was answered negatively by Judges Gallegos, Bocanegra, Madriz and
Astua, and affirmatively by Judge Ucles.
The tenth was answered negatively by Judges Gallegos, Bocanegra, Madriz and
Astua, and affirmatively by Judge Ucles.
The eleventh was answered negatively by Judges Gallegos, Bocanegra, Madriz
and Astua, Judge Ucles answering that the governments of El Salvador and
Guatemala should be sentenced to the costs.
Whereas:
The court refrains from sentencing any party to pay the costs of trial, both
in view of the silence of the convention on the subject and because it
considers that it lacks authority to do so because the interested parties
made no request in regard to this point.
Therefore:
This Court of Justice, in the name of the republic of Central America, in
the exercise of the jurisdiction conferred upon it by the Washington
Convention of December 20, 1907, to which it owes its existence, and in
conformity with the principles of international law and the positive rules
before cited, pronounces the following
AWARD:
ARTICLE 1. The pleas of inadmissibility of the complaint and of
insufficiency thereof to begin the action, as entered by the representative
of the Guatemalan Government, are declared inadmissible.
ARTICLE 2. The governments of the Republics of El Salvador and Guatemala,
the high defendants, are acquitted of the charges made against them in this
suit and it is therefore declared that there are no grounds for holding them
responsible as demanded by the high plaintiff, and no party is sentenced to
pay the costs.
Jose Astua Aguilar.
Salv. Gallegos.
Angel M. Bocanegra.
The foregoing award was drawn up by the Presiding Judge Astua Aguilar, and
is signed by only three judges, because Judges Ucles and Madriz refused to
sign it.
Ernesto Martin, Secretary. |
|